Making FGM protection orders

A High Court judge recently made some important observations on the making of FGM protection orders in the future. Adam Kayani examines the ruling.

The case of AS -v- London Borough of Waltham Forest [2024] EWHC 2808 (Fam) concerned an application by a Mother seeking to discharge an order of the High Court made in respect of her youngest daughter that prevented her from leaving the jurisdiction of the United Kingdom.

The order was made in 2012, when the Child was 5 years old, and whilst its intention was to protect the subject child from the risk of having Female Genital Mutilation performed on her – it was made as an order under the Inherent Jurisdiction rather than being specifically expressed as an FGM Protection Order under the Female Genital Mutilation Act 2003. The Mother applied in October 2023, the Child then being 16, for the order to be discharged, arguing that given her age, the progress made in the Somali community in educating itself on the detriment of FGM and the work they had done as a family to educate themselves on the harms of the practice that the risk was no longer sufficient to justify such a draconian order.

This case had several interesting aspects. Firstly, the original order was made for an indefinite period, with no requirement to be reviewed either by the Local Authority’s internal processes or by the Court. Secondly, the order was made pursuant to the Inherent Jurisdiction, not the Children Act or the Female Genital Mutilation Act 2003 and so, in theory, could have bound the subject child into adulthood and beyond. Thirdly, the family were closed to Children’s Social Care almost immediately after the original order was made. These factors combined to leave the subject child unable to travel outside of the jurisdiction for any purpose at all. She was unable to attend school trips, accompany her siblings on family trips abroad or undertake religious pilgrimages.

The Mother had applied to the Court previously for this order to be varied or discharged without success. This case also exposed the disjointed nature of record-keeping in respect of these orders – given that neither the Court, the Mother’s previous solicitors nor the Local Authority had a complete record of either the original order or the previous papers arising from those attempts to discharge the order previously.

The Court, in this application, had to decide to what extent the Local Authority’s continued refusal to discharge the order in respect of the subject Child was commensurate to the risk and whether to leave this order in place for the remaining 2 years of the Child’s minority or not (the order having been clarified by the Court at the outset of this application as being a Prohibited Steps Order made under the Children Act 1989). The subject child’s three sisters, and the Mother herself, had all been subjected to FGM whilst in Yemen (where they lived having fled the civil war in Somalia).

The Local Authority were directed to produce a risk assessment, taking into account the work the family had undertaken with FORWARD (to whom they had been referred by their MP) – and this was carried out by the allocated social worker. The Court determined that this risk assessment was unsatisfactory and ordered another to be produced by Zainab Nur (independent social worker). The judgment of the Court highlighted the extraordinary nature of the Social Worker’s approach in this case, highlighting how (with regret) the Court was unable to place any weight at all on her evidence given the deficiencies in the Local Authority’s approach – both in terms of them failing to make any kind of accurate assessment of risk and failing to take any cultural nuance or understanding into account when reaching their conclusions.

The Court ultimately decided to discharge the order immediately and to make important observations for future cases. This case highlights the following important matters that should be taken into account for the making of future orders of this kind:

• FGM Protection Orders that restrict a young person’s right to travel should not be made indefinitely (unless in very extreme cases) and should always have a built-in process of review.
• The Local Authority (and those representing the Child concerned or the families involved) should be sure that they commission culturally specific risk assessments (by Independent Social Workers who speak the family’s first-language or have some other specific expertise if required).
• Records of such orders that are made must be retained for so long as they remain in force. Local authorities must continue to work with families whose young people are subject to this order and should return the matter to Court to consider the continuation of the order before closing them to further social care involvement if they believe the risk has reduced or resolved completely.

Adam Kayani is a barrister at Harcourt Chambers. Instructed by Wilsons Solicitors, he represented the Applicant Mother.

Adam is available for instruction in all types of cases, whether in public or private law, involving Female Genital Mutilation and either obtaining, discharging or reviewing protective orders.